CHAPTER 1

CHAPTER 1

Introduction and Background

Reference

1.1
On 14 November 2013, the Senate referred the provisions of the Building
and Construction Industry (Improving Productivity) Bill 2013 and the Building
and Construction Industry (Consequential and Transitional Provisions) Bill 2013,
to the Senate Education and Employment Committee for inquiry and report by
2 December 2013.[1]

Conduct of the inquiry

1.2
Details of the inquiry were made available on the committee's website
and the committee also contacted a number of organisations inviting submissions
to the inquiry. Submissions were received from 18 individuals and
organisations, as listed in Appendix 1. A public hearing was held in Melbourne
on 26 November 2013. The witness list for that hearing is available in Appendix
2.

Acknowledgement

1.3
The committee thanks those individuals and organisations who contributed
to the inquiry by preparing written submissions, giving evidence at the hearing
and responding to questions taken on notice.

Note on references

1.4
References in this report to the Hansard for the public hearing are to
the Proof Hansard. Please note that page numbers may vary between the proof and
the official transcripts.

Background to the Bill

1.5
The Building and Construction Industry (Improving Productivity) Bill
2013 proposes to regulate certain conduct of building industry participants who
perform building work.

1.6
The bill would replace the Office of the Fair Work Building Industry
Inspectorate with the re-established Australian Building and Construction
Commission. The bill governs the appointments and functions of the Commission
as well as those of the Office of the Federal Safety Commissioner.

Legislative History

1.7
The Australian Building and Construction Commission was abolished in
2012 under the Building and Construction Industry Improvement Amendment
(Transition to Fair Work) Act 2012 (The current Act). The committee considered
that bill in its report of February 2012.[2]
Over the last decade or so the committee has considered much of the subject
matter and many of the key issues contained in this bill.

1.8
In 2003 the Royal Commission into the Building and Construction Industry
released its reports and findings.[3]
Consequently, the government introduced the Building and Construction Industry
Improvement Bill 2003. This bill lapsed in the Senate when Parliament was
prorogued in 2004. Nevertheless, the committee produced a report in June 2004
covering the 2003 bill and related matters.[4]

1.9
In 2005 the Building and Construction Industry Improvement Bill 2005 was
introduced and passed. The committee inquired into the 2005 bill and tabled a
report in May of that year. The Building and Construction Industry (Restoring
Workplace Rights) Bill 2008 was introduced as a private members' bill and the
committee inquired into and reported on this bill in November 2008.

1.10
On 17 June 2009 the Labor government introduced the Building and
Construction Industry Improvement Amendment (Transition to Fair Work) Bill
2009. The Senate referred the provisions of the bill to the committee. The bill
lapsed when Parliament was prorogued on 19 July 2010. The committee inquired
and presented a report in September 2009.

Findings of the Committee in 2012

1.11
The committee considered the Building and Construction Industry
Improvement Amendment (Transition to Fair Work) Bill 2012 that abolished the
Australian Building and Construction Commission in its 2012 report and made a
series of recommendations to amend the bill.

1.12
Coalition Senators provided a dissenting report which concluded with a
single recommendation expressing opposition to the bill and a commitment to the
re-establishment of the Australian Building and Construction Commission.

Purpose of the Bill

1.13
The bill re-establishes the Australian Building and Construction
Industry Commission (ABCC) that was abolished under the 2012 Act and replaced
by the Office of Fair Work Building Industry Inspectorate (FWBII). The bill
proposes that the FWBII would continue in existence under the name of the ABCC.
Chapter 2 would also regulate the appointment and functions of the Australian
Building and Construction Industry Commissioner (ABC Commissioner).

1.14
The bill would provide powers to either the Minister or to the ABC
Commissioner and staff to:

issue a Building Code which includes providing the ABC Commissioner with
the power to require a person to report on his or her compliance with the Code;

prohibit unlawful industrial action if the action has a connection to a
constitutionally-covered entity;

prohibit coercion of persons in relation to the engagement of
contractors and employees or choice of superannuation fund;

prohibit coercion or undue pressure on persons in relation to
Commonwealth industrial instruments; and

obtain information.

1.15
The bill also includes enforcement provisions and deals with
administrative matters.

The Building Code

1.16
Chapter 3 of the bill would provide the Minister with the power to issue
a Building Code. The current Building Code was issued by Legislative Instrument
under the Fair Work (Building Industry) Act 2012 and commenced on 1 February 2013.
This bill adds a provision that building industry participants may be directed
to report to the ABC Commissioner on their compliance with the Code.

Unlawful Industrial Action

1.17
Chapter 5 of the bill prohibits unlawful industrial action. Unlawful
industrial action includes bans on working, employees failing to attend work
and employers locking out employees.[5]
This Chapter would apply only if the unlawful action or unlawful picket has a
connection to a constitutionally-covered entity. Any person would be able to
apply for an injunction to restrain a person from organising or engaging in
unlawful industrial action or an unlawful picket in relation to building work.[6]

1.18
The bill also states that the provisions in Part 3-3 of the Fair Work
Act 2009 relating to strike pay would also apply in relation to unlawful
industrial action.

Coercion, discrimination and
unenforceable agreements

1.19
Chapter 6 would prohibit action that:

intends to coerce a person to employ or engage individual employees or
independent contractors;

intends to coerce a person to assign particular duties or
responsibilities to people or contractors;

intends to make an employee or employer nominate a particular
superannuation fund.

1.20
In addition, the chapter proposes to ban actions that intend to coerce
or apply undue pressure to make, vary or terminate enterprise agreements.

1.21
Part 3 of Chapter 6 would make an agreement unenforceable if the
agreement is entered into with the intention to secure standard employment
conditions for building employees at a particular site and not all the
employees are employed in a single enterprise.

Obtaining Information

1.22
The powers to obtain information in relation to an investigation of a
suspected contravention of the bill or a designated building law are set out in
Chapter 7. The bill would give the ABC Commissioner the power to issue an
examination notice to a person directing them to provide documents or
information relevant to the investigation. The person would have 14 days to
comply.

1.23
These powers were first introduced in the Building and Construction
Industry Improvement Bill 2005. The powers were retained in the Building and
Construction Industry Improvement Amendment (Transition to Fair Work) Act 2012
but with a requirement to notify the Commonwealth Ombudsman of the issue of an
examination notice. This provision has been retained in the bill.

Building and Construction Industry (Consequential and Transitional
Provisions) Bill 2013

1.24
The Building and Construction Industry (Consequential and Transitional
Provisions) Bill 2013 is consequential to the Building and Construction
Industry (Improving Productivity) Bill 2013. The bill would wholly repeal the
Fair Work (Building Industry) Act 2012 and amend the following Acts:

Administrative Decisions (Judicial Review) Act 1977;

Fair Work (Registered Organisations) Act 2009;

Jurisdiction of Courts (Cross-Vesting) Act 1987; and

Building and Construction Industry (Improving Productivity) Act 2013.

1.25
The bill provides administrative arrangements relating to the transition
from the institutions, functions and powers contained in the Fair Work
(Building Industry) Act 2012 to those proposed in the Building and Construction
Industry (Improving Productivity) Bill 2013.

Compatibility with human rights

Building and Construction Industry
(Improving Productivity) Bill 2013

1.26
The explanatory memorandum states that the Building and Construction
Industry (Improving Productivity) Bill 2013 is compatible with the human rights
and freedoms recognised or declared in the international instruments listed in
the Human Rights (Parliamentary Scrutiny) Act 2011.[7]

1.27
A number of human rights are engaged by the bill, including: the right
to freedom of association, the right to just and favourable conditions of work,
the right to a fair trial, the right to peaceful assembly, the right to freedom
of expression, and the right to privacy and reputation.[8]
The explanatory memorandum submits that the measures contained in the bill are
a reasonable and proportionate response to the findings of the 2003 Royal
Commission and 'recent evidence of lawlessness in the building and construction
industry'.[9]

Building and Construction Industry
(Consequential and Transitional Provisions) Bill 2013

1.28
The explanatory memorandum states that the Building and Construction
Industry (Consequential and Transitional Provisions) Bill 2013 is compatible
with the human rights and freedoms recognised or declared in the international
instruments listed in the Human Rights (Parliamentary Scrutiny) Act 2011.[10]

1.29
The bill engages the right to privacy. For example, the bill contains
provisions to protect privacy and also to enables the transfer of information
relating to current investigations from the current regulator to the ABC Commission,
to ensure continuity in enforcement activities. The explanatory memorandum
concludes that the bill is consistent with human rights because 'to the extent
that it may limit human rights, those limitations are reasonable, necessary and
proportionate'.[11]

Consideration by legislative scrutiny and human rights committees

1.30
The bills have not yet been considered by the Parliamentary Joint
Committee on Human Rights or the Senate Standing Committee for the Scrutiny of
Bills.